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TMI Blog2011 (7) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Additional District Judge, Osmanabad and restored the judgment and decree of the trial court. 3. Sardar Khan was the owner of a property bearing land Block No. 386 and House No. 206 situate at Mangrul, Taluqa Kallam, District Osmanabad. He died in 1948 leaving behind a son - Umerkhan and two daughters-Bismillabi and Aminabi. Both daughters were minor at the time of the death of their father. They got married later. Bismillabi (hereinafter referred to as, 'Plaintiff') filed a suit for partition and separate possession to the extent of 1/4th share in the above property against her brother Umerkhan (hereinafter referred to as, '1st Defendant') and her sister Aminabi (hereinafter referred to as, '2nd Defendant'). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the trial court on issue No. 4 and held that the 1st Defendant became owner of the suit property by adverse possession and, accordingly, allowed the first appeal on August 1, 2001 and set aside the judgment and decree of the trial court. 7. The Plaintiff challenged the judgment and decree of the first appellate court in the second appeal before the High Court. In the course of second appeal, 2nd Defendant died and her legal representatives were brought on record. The High Court allowed the second appeal and, as noticed above, set aside the judgment and decree of the first appellate court. 8. Pertinently, the judgment of the High Court that runs into eight foolscap pages does not indicate that scope of second appeal as provided in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extract filed on record, adverse inference will have to be drawn against the Respondent No. 1. His exclusive or continuous possession is not established on record for a period of over 12 years preceding to the filing of the suit. No case of ouster is made out. Oral evidence of Vishnu Baburao Jadhav, witness No. 2, cannot be accepted as evidence of possession for such long period and has been rightly rejected and not considered by the trial court in the light of the evidence of Respondents. So also case of adverse possession was dismissed by learned trial Court after going through the evidence of Respondent No. 1. 11. Mere refusal to give share will not give rise to claim adverse possession and thus it is seen that learned appellate Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 11. Section 101 of the Code provides that no second appeal shall lie except on the ground mentioned in Section 100. 12. Section 103 of the Code empowers High Court to determine any issue necessary for disposal of the second appeal in the circumstances stated therein. Section 103 reads as under: Section 103.- Power of High Court to determine issues of fact. - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, - (a) which has not been determined by the lower Appellate Court or both by the Court of first in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law and a decision on such question. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position. 14. In Ishwar Dass Jain (Dead) through L.Rs. v. Sohan Lal (Dead) by L.Rs. (2000) 1 SCC 434, in paragraph 10 (page 441) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon in Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors. (2005) 12 SCC 588 and C.A. Sulaiman and Ors. v. State Bank of Travancore, Alwayee and Ors. (2006) 6 SCC 392 and this Court set aside the judgments of the High Court and the matters were remanded to the High Court for disposal of second appeal in accordance with law. 18. Recently, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216, the above legal position has been restated. This Court stated in paragraph 16 (page 225) of the Report as under: ... The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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